Too sick for work, but not for the pub?

We are all too aware of employees pulling ‘sickies’ but the reality is health and wellness is more complex than ever and being sick no longer means being house bound. The employer in the case of Kane v Debmat Surfacing Limited, had a stark reminder of this when the Employment Tribunal addressed the issue of conduct while on sick leave. Here the tribunal concluded that an employee was in fact unfairly dismissed, despite evidence he had been in the pub whilst on sick leave.

Dismissed for gross misconduct

Mr Kane worked as a driver for Debmat Surfacing Limited for eight years and had several periods of absence during that time. He had been diagnosed with chronic obstructive pulmonary disease. During his three-week sick leave in March 2020, Mr Kane was seen by a manager entering a pub. When questioned about this behaviour, he denied being there, insisting he had been sick in bed all day. He did, however, admit he was in the pub the following day. Subsequently, he was investigated and found to have been dishonest and in breach of the employer’s policies. The employer believed that as Mr Kane was too sick for work and on antibiotics, he should not be in the pub. He was dismissed for gross misconduct.

After an unsuccessful internal appeal against his employer’s decision to dismiss him, Mr Kane brought a claim in the Employment Tribunal for unfair dismissal.

Dismissal was unfair

The Employment Tribunal found in Mr Kane’s favour and concluded an unfair dismissal had taken place. While misconduct is one of the five potentially fair reasons for dismissal under the Employment Rights Act 1996, the tribunal found that the investigation conducted by the employer was not adequate nor reasonable in the circumstances. There was insufficient evidence relied on to support the employer’s actions. Furthermore, the tribunal found that there was no specific rule that employees cannot socialise while on sick leave. The employer made a “gross assumption”, without the required evidence. Additionally, the tribunal found that the disciplinary procedure followed by the employer was below the standard of a reasonable employer.

However, the tribunal found that there would have been a 25% chance that Mr Kane would still have been dismissed if the procedure had been fair. Accordingly, the compensation awarded to Mr Kane was reduced.

Pub or no pub?

Just to be clear, the tribunal is by no means supporting socialising or going to the pub while on sick leave. This was more a case of an unfair procedure, poor investigation and the employer not acting reasonably in the circumstances, especially as there was no express rule prohibiting socialising while on sick leave.

As with all decisions, we can remind ourselves of the fundamentals to protect businesses against such claims;

• Ensure a proper and fair procedure is followed for all disciplinary investigations, and appropriate records of all meetings and conversations are kept
• Ensure you have adequate evidence when deciding on an employee’s conduct. Where ill health is involved, medical evidence should always be a high consideration
• Consider making provisions in your Staff Handbooks for ‘Dos and Don’ts’ during sick leave
• Bear in mind that unless the misconduct in question was severe, dismissal should not be the first option. Informal warnings, formal warnings and final written warnings are common approaches taken, and when done properly, mitigate the risk of a claim.